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Supreme Court Decides Espinoza v. Montana Department of Revenue

On June 30, 2020, the U.S. Supreme Court decided Espinoza v. Montana Department of Revenue, No. 18-1195, holding that if a state subsidizes private education, the Free Exercise Clause does not allow the state to deny that subsidy to a school because it is religious.

A Montana statute offered tax credits for donations to private-school scholarship funds. The Montana Department of Revenue barred religious schools from receiving scholarship money, based on the Montana Constitution’s “‘no-aid’ provision barring government aid to sectarian schools.”

Mothers of students at a Montana Christian school brought suit in Montana state court, seeking scholarship eligibility for their children. The Montana Supreme Court rejected their claims. It held that the statute, properly construed, did not allow the Department of Revenue to bar aid to religious schools — but that this violated the state constitution’s no-aid provision, and so the entire statutory scholarship program was invalid.

The U.S. Supreme Court reversed by a 5-4 vote. The Court held that Montana’s no-aid provision “bars all aid to a religious school simply because of what it is, putting the school to a choice between being religious or receiving government benefits,” and so is subject to “the strictest scrutiny” under the Free Exercise Clause. The Court further held that “achieving greater separation of church and State than is already ensured under the Establishment Clause” is not a compelling state interest, and that the no-aid provision does not advance Montana’s interest in focusing financial support on public education, because it cuts off funding only to religious schools while allowing funding for other non-public schools.

Finally, the Court rejected the argument that there was no Free Exercise violation because the Montana courts struck down the entire scholarship program for both religious and non-religious private schools. The Court explained that, since the Free Exercise Clause precludes applying Montana’s no-aid provision, the federal Constitution eliminates any “basis for terminating the program.”

Chief Justice Roberts delivered the opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Thomas filed a concurrence, joined by Justice Gorsuch, and Justices Alito and Gorsuch each filed separate concurrences. Justice Ginsburg filed a dissent joined by Justice Kagan; Justice Breyer filed a dissent joined in part by Justice Kagan; and Justice Sotomayor filed a separate dissent.


© 2022 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 182

About this Author

Aaron D. Van Oort Appellate Attorney Faegre Drinker Biddle & Reath Minneapolis, MN

Aaron Van Oort is a legal strategist, class action litigator and appellate lawyer who co-chairs Faegre Drinker's appellate advocacy group. A former law clerk for Justice Antonin Scalia and a Fellow of the American Academy of Appellate Lawyers, Aaron is a voice for clients in trial and appellate courts throughout the country.

Appellate Advocacy

Aaron has represented clients in 12 of the 13 United States Courts of Appeal, as well as in the United States Supreme Court and in state appellate courts. He is an editor of the 8th Circuit Practice Manual (8th ed. 2018) and a...

Nicholas J. Nelson Litigation Attorney Faegre Drinker Biddle & Reath Minneapolis, MN

Nicholas Nelson is an experienced litigator in the U.S. Supreme Court and appellate courts nationwide. He analyzes, briefs and solves complex legal doctrine issues for clients, on appeal and in the trial courts. Nick has special expertise dealing with legal and strategic issues regarding forum selection and transfers when a defendant faces similar lawsuits in multiple jurisdictions.

Appellate Litigation

Nick has filed briefs in over 20 cases before the U.S. Supreme Court — at both the certiorari and merits stages and on behalf of petitioners, respondents, and amici curiae...